Immigration Again Center-Stage During Supreme Court’s 2012 Term

"The Supreme Court began its 2012 term this week coming off of a controversial year in which the Court played a central role in the ongoing effort to determine the parameters of U.S. immigration policy and the extent of federal authority. In the Court’s fall session, the Justices will again delve into immigration law in two cases that deal with the consequences of criminal convictions for non-citizens.

First up before the Court is Moncrieffe v. Holder in which the Court will decide whether a conviction under a provision of state law that encompasses, but is not limited to, the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony subjecting the non-citizen to removal from the U.S., notwithstanding that the non-citizen was convicted of possessing such a small amount of marijuana that it would qualify as a misdemeanor under federal law rather than as a felony.

Shortly thereafter the Court will shift its attention to Chaidez v. U.S. to decide just how expansively to read its prior decision in Padilla v. Kentucky, in which the Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The scope of the question presented in Chaidez is whether Padilla applies retroactively to persons whose convictions became final before its Padilla ruling.